FOIA Guide, 2004 Edition: Exemption 1

Freedom of Information Act Guide, May 2004

Exemption 1

Beginning with President Harry S. Truman in 1951, (1) the uniform policy of the
executive branch concerning the protection of national security information
traditionally has been set by the President with the issuance of a new or revised
national security classification executive order. (2) Exemption 1 of the FOIA integrates
the national security protections provided by this executive order with the FOIA's
disclosure mandate by protecting from disclosure all national security information
concerning the national defense or foreign policy that has been properly classified in
accordance with the substantive and procedural requirements of the current such
order. (3) The executive order currently in effect is Executive Order 12,958, as
amended, which was signed by President George W. Bush on March 25, 2003. (4) This
amend-ed order replaced the original version of Executive Order 12,958, which was
issued in 1995 by President William J. Clinton. (5) The provisions of this amended
executive order are discussed below.

The issuance of each classification executive order, or the amendment of an
existing executive order, raises the question of the applicability of successive
executive orders to records that were in various stages of administrative or litigative
handling as of the current executive order's effective date. (6) The appropriate
executive order to apply, with its particular procedural and substantive standards,
depends upon when the responsible agency official takes the final classification
action on the record in question. (7)

Under the precedents established by the Court of Appeals for the District of
Columbia Circuit, the accepted rule is that a reviewing court will assess the
propriety of Exemption 1 withholdings under the executive order in effect when "the
agency's ultimate classification decision is actually made." (8) Only when "a reviewing
court contemplates remanding the case to the agency to correct a deficiency in its
classification determination is it necessary" to comply with a superseding executive
order. (9) It also is important to note that agencies may, as a matter of discretion, re-examine their classification decisions under a newly issued or amended executive
order in order to take into account "changed international and domestic
circumstances." (10) This type of re-examination allows federal agencies to apply
current executive branch national security policies in the protection of national
security information. (11) For example, agencies may find it particularly beneficial to re-examine some classification decisions under amended Executive Order 12,958, as it
provides additional protections for information related to weapons of mass
destruction and the threat of transnational terrorism through provisions that did not
exist in the original version of the order. (12)

Before examining the principles that courts apply in Exemption 1 cases, it is
useful to review briefly the early decisions construing this exemption, as well as its
legislative history. In 1973, the Supreme Court in EPA v. Mink (13) held that records
classified under proper procedures were exempt from disclosure per se, without any
further judicial review, thereby obviating the need for in camera review of
information withheld under this exemption. (14) Responding in large part to the thrust
of that decision, Congress amended the FOIA in 1974 to provide expressly for de
novo review by the courts and for in camera review of documents, including
classified documents, where appropriate. (15) In so doing, Congress sought to ensure
that agencies properly classify national security records and that reviewing courts
remain cognizant of their authority to verify the correctness of agency classification
determinations. (16)

Standard of Review

After Congress amended the FOIA in 1974, numerous litigants challenged the
sufficiency of agency affidavits in Exemption 1 cases, requesting in camera review by
the courts and hoping to obtain disclosure of challenged documents. Nevertheless,
courts initially upheld agency classification decisions in reliance upon agency
affidavits, as a matter of routine, in the absence of evidence of bad faith on the part
of an agency. (17) In 1978, however, the Court of Appeals for the District of Columbia
Circuit departed somewhat from such routine reliance on agency affidavits,
prescribing in camera review to facilitate full de novo adjudication of Exemption 1
issues, even when there is no showing of bad faith on the part of the agency. (18) This
decision nevertheless recognized that the courts should "first 'accord substantial
weight to an agency's affidavit concerning the details of the classified status of the
disputed record.'" (19)

The D.C. Circuit further refined the appropriate standard for judicial review of
national security claims under Exemption 1 (or under Exemption 3, in conjunction
with certain national security protection statutes), finding that summary judgment is
entirely proper if an agency's affidavits are reasonably specific and there is no
evidence of bad faith. (20) Rather than conduct a detailed inquiry, the court deferred to
the expert opinion of the agency, noting that judges "lack the expertise necessary to
second-guess such agency opinions in the typical national security FOIA case." (21)
This review standard has been reaffirmed by the D.C. Circuit on a number of
occasions, (22) and it has been adopted by other circuit courts as well. (23) Of course,
where agency affidavits have been found to be insufficiently detailed, courts have
withheld summary judgment in Exemption 1 cases on procedural grounds. (24)

If an agency affidavit passes muster under this standard, though, in camera
review may be inappropriate because substantial weight must be accorded that
affidavit. (25) In a 1996 decision, the D.C. Circuit stated that in a national security case,
a district court exercises "wise discretion" when it limits the number of documents it
reviews in camera. (26) In upholding the district court's decision not to review certain
documents in camera, the D.C. Circuit opined that limiting the number of documents
examined by a court "makes it less likely that sensitive information will be disclosed"
and, if there is an unauthorized disclosure of classified information, "makes it easier
to pinpoint the source of the leak." (27)

In another case, the Court of Appeals for the Seventh Circuit analyzed the
legislative history of the 1974 FOIA amendments and went so far as to conclude that
"Congress did not intend that the courts would make a true de novo review of
classified documents, that is, a fresh determination of the legitimacy of each
classified document." (28) It also is noteworthy that the only Exemption 1 FOIA
decision to find agency "bad faith," (29) one in which an appellate court initially held
that certain CIA procedural shortcomings amounted to "bad faith," was
subsequently vacated on panel rehearing. (30)

Deference to Agency Expertise

While the standard of judicial review often is expressed in different ways,
courts generally have heavily deferred to agency expertise in national security
cases. (31) Such deference is based upon the "magnitude of the national security
interests and potential risks at stake," (32) and it is extended by courts because
national security officials are uniquely positioned to view "the whole picture" and
"weigh the variety of subtle and complex factors" in order to determine whether the
disclosure of information would damage the national security. (33) Indeed, courts
ordinarily are very reluctant to substitute their judgment in place of the agency's
"unique insights" (34) in the areas of national defense and foreign relations. (35) This is
because courts have recognized that national security is a "uniquely executive
purview" (36) and that "the judiciary is in an extremely poor position to second-guess
the executive's judgment" on national security issues. (37) The tragic events of
September 11, 2001, and their aftermath, have served to make courts more aware of
the need for deference when considering issues related to national security, with
one court observing that "America faces an enemy just as real as its former Cold War
foes, with capabilities beyond the capacity of the judiciary to explore." (38)

Courts have demonstrated this deference to agency expertise also by
according little or no weight to opinions of persons other than the agency
classification authority when reviewing the propriety of agency classification
determinations. (39) Persons whose opinions have been rejected by the courts in this
context include a former ambassador who had personally prepared some of the
records at issue, (40) a retired admiral, (41) a former CIA agent, (42) and a retired CIA staff
historian. (43) And in a further example of deference to agency expertise, a court
considering the sensitivity of CIA budget information not long ago concluded that it
"must defer to . . . [the agency's] decision that release . . . amidst the information
already publicly-available, provides too much trend information and too great a
basis for comparison and analysis for our adversaries." (44)

Nevertheless, while judicial deference to agency expertise is the norm in
Exemption 1 litigation, in some cases courts have rejected an agency's classification
decision. (45) The most recent example of this occurred in Weatherhead v. United
States, (46) a case decided under the original version of Executive Order 12,958 in which
a district court initially ordered the disclosure of a letter sent by the British Home
Office to the Department of Justice, which was not classified until after receipt of the
FOIA request. (47) On a motion for reconsideration, the district court rejected the
government's arguments that the court had failed to give the agency's determination
of harm sufficient deference. (48) The court "reluctantly" agreed to review the letter in
camera because "of the danger that highly sensitive . . . material might be released
only because [the agency was] unable to articulate a factual basis for their concerns
without giving away the information itself." (49) When this proved to be the case upon
the court's in camera review of the document, the court granted the motion for
reconsideration and upheld the letter's classification. (50)

On appeal, however, the Court of Appeals for the Ninth Circuit, in a two-to-one decision, flatly refused to defer to the State Department's judgment of foreign
relations harm and ordered the letter disclosed. (51) The Solicitor General then
petitioned the Supreme Court to grant certiorari review of the Ninth Circuit's ruling,
which it did, and the case was scheduled for Supreme Court argument. (52) During the
briefing of the case, however, the requester suddenly revealed that he was in
possession of a subsequent letter from a local British Consul that addressed the
same subject. (53) In response to this revelation, the State Department brought this
new information to the attention of the British Government, which then decided to
no longer insist on confidentiality for the letter. (54) Accordingly, and on an expedited
basis, the letter was declassified and disclosed to the requester. (55) The Solicitor
General then successfully moved to have the Supreme Court nullify the Ninth
Circuit's adverse precedent on the ground that it no longer could be appealed. (56)

In Camera Submissions and an Adequate Public Record

There are numerous instances in which courts have permitted agencies to
submit explanatory in camera affidavits in order to protect certain national security
information that could not be discussed in a public affidavit. (57) It is entirely clear,
though, that agencies taking such a special step are under a duty to "create as
complete a public record as is possible" before doing so. (58) This public record
provides a meaningful and fair opportunity for a plaintiff to challenge, and an
adequate evidentiary basis for a court to rule on, an agency's invocation of
Exemption 1. (59)

In this regard, it is reasonably well settled that counsel for plaintiffs are not
entitled to participate in such in camera proceedings. (60) Several years ago, though,
one court took the unprecedented step of appointing a special master to review and
categorize a large volume of classified records. (61) In other instances involving
voluminous records, courts have on occasion ordered agencies to submit samples of
the documents at issue for in camera review. (62)

In a decision that highlights some of the difficulties of Exemption 1 litigation
practice, the Court of Appeals for the Fourth Circuit issued a writ of mandamus that
required court personnel who would have access to classified materials submitted
in camera in an Exemption 1 case to obtain security clearances prior to the
submission of any such materials to the court. (63) On remand, the district court judge
reviewed the disputed documents entirely on his own. (64) Consistent with the special
precautions taken by courts in Exemption 1 cases, the government also has been
ordered to provide a court reporter with the requisite security clearances to
transcribe in camera proceedings, in order "to establish a complete record for
meaningful appellate review." (65)

In other cases, courts have compelled agencies to submit in camera affidavits
when disclosure in a public affidavit would vitiate the very protection afforded by
Exemption 1. (66) Affidavits -- whether public, in camera, or a combination of the two --
have been employed when even the confirmation or denial of the existence of
records at issue would pose a threat to national security, which is the so-called
"Glomar" situation. (67) (For a further discussion of in camera review, see Litigation Considerations, In
Camera Inspection, below.)

"Public Domain" Information

Several courts have had occasion to consider whether agencies have a duty to
disclose classified information that purportedly has found its way into the public
domain. (68) In this regard, courts have held that, in asserting a claim of prior public
disclosure, a FOIA plaintiff bears "the initial burden of pointing to specific
information in the public domain that appears to duplicate that being withheld." (69) Accordingly, Exemption 1 claims should not be undermined by generalized
allegations that classified information has been leaked to the press or otherwise
made available to members of the public. (70) Courts have carefully distinguished
between a bona fide declassification action or official release on the one hand and
unsubstantiated speculation lacking official confirmation on the other, refusing to
consider classified information to be in the public domain unless it has been officially disclosed. (71)
Indeed, this judicial axiom comports with the amended Executive Order 12,958,
which allows agencies to classify or reclassify information following an access
request if it "has not previously been disclosed to the public under proper
authority." (72) (For a discussion of the requirements for such belated classification, see
Exemption 1, Executive Order 12,958, as Amended, below.)

A recurring issue in the waiver arena is whether public statements by former
government officials constitute such an "official disclosure," and thus prevent an
agency from invoking Exemption 1 to withhold information that it determines still
warrants national security protection. In this regard, the Court of Appeals for the
Second Circuit has rejected the argument that a retired admiral's statements
constituted an authoritative disclosure by the government. (73) It pointedly stated:
"Officials no longer serving with an executive branch department cannot continue to
disclose official agency policy, and certainly they cannot establish what is agency
policy through speculation, no matter how reasonable it may appear to be." (74)
Additionally, the Second Circuit affirmed the decision of the district court in holding
that the congressional testimony of high-ranking Navy officials did not constitute
official disclosure because it did not concern the specific information being sought. (75)

Similarly, courts have rejected the view that widespread reports in the media
about the general subject matter involved are sufficient to overcome an agency's
Exemption 1 claim for related records. Indeed, in one case, the court went so far as
to hold that 180,000 pages of CIA records concerning Guatemala were properly
classified despite the fact that the public domain contained significant information
and speculation about CIA involvement in the 1954 coup in Guatemala: "CIA
clearance of books and articles, books written by former CIA officials, and general
discussions in [c]ongressional publications do not constitute official disclosures." (76) In
a subsequent case, one court went even further, holding that documents were
properly withheld under Exemption 1 even though they previously had been
disclosed "involuntarily as a result of [a] tragic accident such as an aborted rescue
mission [in Iran], or used in evidence to prosecute espionage." (77)

In a 1990 decision, the Court of Appeals for the District of Columbia Circuit
held that for information to be "officially acknowledged" in the context of Exemption
1, it must: (1) be as "specific" as the information previously released; (2) "match" the
information previously disclosed; and (3) have been made public through an "official
and documented" disclosure. (78) Applying these criteria, the D.C. Circuit reversed the
lower court's disclosure order and held that information published in a congressional
report did not constitute "official acknowledgment" of the purported location of a
CIA station, because the information sought related to an earlier time period than
that discussed in the report. (79) In so ruling, it did not address the broader question of
whether congressional release of the identical information relating to intelligence
sources and methods could ever constitute "official acknowledgment," thus requiring
disclosure under the FOIA. (80) However, the D.C. Circuit had previously considered
this broader question and had concluded that congressional publications do not
constitute "official acknowledgment" for purposes of the FOIA. (81)

In 1993, the D.C. Circuit had an opportunity to consider the issue of whether an
agency had "waived" its ability to properly withhold records pursuant to Exemption
1. The case involved the question of whether the public congressional testimony of
the U.S. Ambassador to Iraq constituted such a "waiver" so as to prevent the agency
from invoking the FOIA's national security exemption to withhold related records. (82)
The district court had held -- after reviewing the seven documents at issue in camera
-- that the public testimony had not "waived" Exemption 1 protection because the
"context" of the information in the documents was sufficiently "different" so as to not
"negate" their "confidentiality." (83) Terming this an "unusual FOIA case" because the
requester did not challenge the district court's conclusion that the documents were
properly exempt from disclosure under Exemption 1 and because the requester also
conceded that it could not meet the strict test for "waiver," the D.C. Circuit rejected
the requester's primary argument that the facts of this case distinguished it from the
court's prior decisions on this question. (84)

The requester contended first that the court's prior decisions concerned
attempts by FOIA requesters to compel agencies to confirm or deny the truth of
information that others had already publicly disclosed. (85) The plaintiff then argued
that the Ambassador's public statements about her meeting with the Iraqi leader
prior to the invasion of Kuwait were far more detailed than those that the D.C.
Circuit had found did not constitute "waiver" in previous cases. (86) The D.C. Circuit
repudiated both of the requester's points and, in affirming the district court's
decision, grounded its own decision in the fact that the requester "conceded" it
could not "meet [the] requirement that it show that [the Ambassador's] testimony
was 'as specific as' the documents it [sought] in this case, or that her testimony
'matche[d]' the information contained in the documents." (87) Acknowledging that such
a stringent standard is a "high hurdle for a FOIA plaintiff to clear," the D.C. Circuit
concluded that the government's "vital interest in information relating to the national
security and foreign affairs dictates that it must be." (88) To hold otherwise in a
situation where the government had affirmatively disclosed some information about
a classified matter would, in the court's view, give the agency "a strong disincentive
ever to provide the citizenry with briefings of any kind on sensitive topics." (89)

In a case decided nearly a decade later, the D.C. Circuit once again visited the
issue of claimed public disclosure of classified information. In Public Citizen v.
Department of State, (90) it considered whether an Exemption 1 claim was defeated
because the requested documents were, prior to their classification, publicly
accessible upon request at the National Archives and Records Administration. (91) The
district court earlier had rejected the plaintiff's waiver argument because the
documents, while accessible, were not maintained in a public access area and were
not likely to have been accessed by a researcher. (92) The district court had explained
that such a "remote possibility of very limited disclosure" was not the type of
"widespread" official dissemination capable of defeating an Exemption 1 claim. (93)
Agreeing with this, the D.C. Circuit began its discussion of the issue by observing
that, as an initial matter, the party claiming prior disclosure must point to "'specific
information in the public domain that appears to duplicate that being withheld,'" (94)
lest the defendant agency unrealistically bear "the task of proving the negative." (95)
The D.C. Circuit concluded that the plaintiff had failed to meet this burden, and it
dismissed the public disclosure claim as nothing more than "speculation." (96) (For a
further discussion of this issue, see Discretionary Disclosure and Waiver, below.)

A final, seemingly obvious point -- but one nevertheless not accepted by all
FOIA requesters -- is that classified information will not be released under the FOIA
even to a requester of "unquestioned loyalty." (97) In a case decided in 1990, a
government employee with a current "Top Secret" security clearance was denied
access to classified records concerning himself because Exemption 1 protects
"information from disclosure based on the nature of the material, not on the nature of
the individual requester." (98)

Executive Order 12,958, as Amended

As is mentioned above, Executive Order 12,958, which was amended on March
25, 2003, (99) sets forth the standards governing national security classification and the
mechanisms for declassification. (100) As with prior executive orders, the amended
Executive Order 12,958 recognizes both the right of the public to be informed about
activities of its government and the need to protect national security information
from unauthorized or untimely disclosure. (101) Accordingly, information may not be
classified unless "the unauthorized disclosure of the information reasonably could be
expected to result in damage to the national security, which includes defense
against transnational terrorism." (102) Courts grappling with the degree of certainty
necessary to demonstrate the contemplated damage under this standard have
recognized that an agency's articulation of the threatened harm must always be
speculative to some extent and that to require a showing of actual harm would be
judicial "overstepping." (103) In the area of intelligence sources and methods, for
example, courts are strongly inclined to accept the agency's position that disclosure
of this type of information will cause damage to national security interests because
this is "necessarily a region for forecasts in which [the agency's] informed judgment
as to potential future harm should be respected." (104)

This standard is elaborated upon in section 1.4 of the amended order, which
specifies the types of information that may be considered for classification. The
information categories identified as proper bases for classification in the amended
Executive Order 12,958 consist of: foreign government information; (105) vulnerabilities
or capabilities of systems, installations, proj-ects, or plans relating to national
security; (106) intelligence activities, sources or methods, (107) or cryptology; (108) foreign
relations or foreign activities, including confidential sources; (109) military plans,
weapons, or operations; (110) scientific, technological, or economic matters relating to
national security; (111) and government programs for safeguarding nuclear materials
and facilities. (112) The amendment of Executive Order 12,958 added a new
classification category protecting information concerning "weapons of mass
destruction," (113) and it further expanded two previously existing categories to include
information regarding "defense against transnational terrorism." (114)

Under the original version of Executive Order 12,958, there was no
presumption that disclosure of information in any of the above categories could
harm national security; hence, there was no presumption that such information is
classified. (115) However, Executive Order 12,958, as amended, established a
presumption of harm to national security from the release of information provided
by or related to foreign governments. (116)

The addition of this presumption of harm may help to resolve a conflict
between two decisions in the District Court for the District of Columbia, in which two
judges took opposing views as to what agencies must demonstrate to protect
national security-related information exchanged with foreign governments. (117) In the
first case, in which the agency's Vaughn Index contained no indication of an explicit
promise of confidentiality between the agency and the foreign government, the
court ordered the FBI to "disclose the circumstances from which it deduces, and
from which the court might as well, that the information was shared in
confidence." (118) Using the relatively stringent standard for the protection of foreign
government information that is applied to the protection of confidential informants in
the law enforcement context, (119) the court required the government to fully explain
the circumstances from which confidentiality is inferred. (120) It imposed this burden
despite the fact that this case was decided under Executive Order 12,356, which, like
the amended Executive Order 12,958, instructed agencies to presume harm to the
national security in releasing foreign government information. (121) The court
subsequently granted the FBI's motion for summary judgment based upon the
agency's supplemental affidavit -- which demonstrated that the FBI's relationship
with the foreign government was based on an express understanding of
confidentiality. (122)

In the second case, the court specifically rejected the requester's argument
that, in order to qualify for Exemption 1 protection, the agency's affidavit must
demonstrate that there were explicit understandings of confidentiality between the
agency and the foreign government regarding the information at issue. (123) In the
court's view, "to compel the agency to supply more information would muddle the
purpose of the exemption." (124) The court found no similarity between the protection
of foreign government information for national security reasons and the protection of
confidential informants in the law enforcement context. (125) It ruled that the
government was not required to provide evidence of either an explicit or implicit
confidentiality understanding with the foreign government, despite the fact that the
information was classified under the original version of Executive Order 12,958,
which did not permit agencies to presume harm to national security from the release
of foreign government information. (126)

With the addition of a presumption of harm in the amended Executive Order
12,958, it now can be anticipated that future such decisions will adopt the latter
court's view for the protection of foreign government information. This latter view
also corresponds more closely to the deferential approach that courts ordinarily take
when reviewing cases involving Exemption 1. (For further discussions of the
appropriate judicial standard in evaluating Exemption 1 claims, see Exemption 1,
Standard of Review, above, and Exemption 1, Deference to Agency Expertise,
above.)

As with prior orders, amended Executive Order 12,958 contains a number of
distinct limitations on classification. (127) Specifically, information may not be classified
in order to conceal violations of law, inefficiency, or administrative error, (128) to prevent
embarrassment to a person, organization, or agency, (129) to restrain competition, (130) to
prevent or delay the disclosure of information that does not require national security
protection, (131) or to classify basic scientific research not clearly related to the national
security. (132) Additionally, the amendment of Executive Order 12,958 removed the
requirement in the original version of the order that agencies not classify information
if there is "significant doubt" about the national security harm. (133)

Following the amendment of Executive Order 12,958, and subject to strict
conditions, agencies may reclassify information after it has been declassified and
released to the public. (134) The action must be taken under the "personal authority of
the agency head or deputy agency head," who must determine in writing that the
reclassification is necessary to protect national security. (135) Further, the information
previously declassified and released must be "reasonably recovered" by the agency
from all public holders, and it must be withdrawn from public access in archives and
reading rooms. (136) Finally, the agency head or deputy agency head must report any
agency reclassification action to the Director of the Information Security Oversight
Office within thirty days, along with a description of the agency's recovery efforts,
the number of public holders of the information, and the agency's efforts to brief any
such public holders. (137) Similarly, the amended Executive Order 12,958 also authorizes
the classification of a record after an agency has received a FOIA request for it,
although such belated classification is permitted only through the "personal
participation" of designated high-level officials and only on a "document-by-document basis." (138) (For a further discussion of official disclosure, see Exemption 1,
"Public Domain" Information, above.)

Executive Order 12,958, as amended, also contains a provision establishing a
mechanism through which classification determinations can be challenged within
the federal government. (139) Under this provision, "authorized holders of information" -- individuals who are authorized to have access to such information -- who, in good
faith, believe that its classification is improper are "encouraged and expected" to
challenge that classification. (140) Furthermore, agencies are required to set up internal
procedures to implement this program, in order to ensure that holders are able to
make such challenges without fear of retribution and that the information in question
is reviewed by an impartial official or panel. (141) Additionally, an agency head or
designee may authorize an "emergency" disclosure of information to individuals who
are not eligible for access to classified information, as may be necessary under
exceptional circumstances "to respond to an imminent threat to life or in defense of
the homeland." (142)

In addition to satisfying the substantive criteria outlined in the appli-cable
executive order, information also must adhere to the order's procedural
requirements to qualify for Exemption 1 protection. (143) Executive Order 12,958, as
amended, prescribes the current procedural requirements that agencies must
employ. (144) These requirements include such matters as the proper markings to be
applied to classified documents, (145) as well as the manner in which agencies
designate officials to classify information in the first instance. (146)

Regarding proper national security markings, Executive Order 12,958, as
amended, requires that each classified document be marked with the appropriate
classification level, (147) the identity of the original classification authority, (148) the identity
of the agency and office classifying the document, (149) as well as with "a concise
reason for classification" that cites the applicable classification category or
categories. (150) It also requires that a date or event for declassification be specified on
the document. (151) In addition, amended Executive Order 12,958 requires agencies to
use portion markings to indicate levels of classification within documents, (152) and it
advocates the use of classified addenda in cases in which classified information
comprises only "a small portion of an otherwise unclassified document." (153) The
Information Security Oversight Office (ISOO) has issued governmentwide guidelines
on these marking requirements. (154)

Executive Order 12,958 also establishes a government entity to provide
oversight of agencies' classification determinations and their implementation of the
order. The Interagency Security Classification Appeals Panel consists of senior-level
representatives of the Secretaries of State and Defense, the Attorney General, the
Director of Central Intelligence, the Archivist of the United States, and the Assistant
to the President for National Security Affairs. (155) Among other things, this body
adjudicates classification challenges filed by agency employees and decides
appeals from persons who have filed requests under the mandatory declassification
review pro-visions of the order. (156)

Agencies with questions about the proper implementation of the substantive
or procedural requirements of Executive Order 12,958, as amended, may consult with
the Information Security Oversight Office, located within the National Archives and
Records Administration, at (202) 219-5250, which holds governmentwide oversight
responsibility for classification matters under the executive order. (157)

Duration of Classification and Declassification

Other important provisions of amended Executive Order 12,958 are those that
establish (1) limitations on the length of time information may remain classified, (158)
and (2) procedures for the declassification of older government information. (159) The
order requires agencies to "attempt to establish a specific date or event for
declassification based upon the duration of the national security sensitivity." (160) The
order also limits the duration of classification to no longer than is necessary in order
to protect national security. (161) If the agency is unable to determine a date or event
that will trigger declassification, however, then amended Executive Order 12,958
instructs the original classification authority to set a ten-year limit on new
classification actions. (162) The classification authority alternatively may determine that
the sensitivity of the information justifies classification for a period of twenty-five
years. (163)

The amendment of Executive Order 12,958 continues the automatic
declassification mechanism that was established by the original version of the order
in 1995. (164) It requires the automatic declassification of information that is more than
twenty-five years old, (165) with exceptions limited to especially sensitive information
designated as such by the heads of agencies. (166) This declassification mechanism did
not exist under previous orders, and its implementation has taken longer than was
originally anticipated. (167)

The original effective date for the automatic declassification mechanism
under the original version of Executive Order 12,958 was October 17, 2001. (168) For
certain identified records, however, the effective date for automatic declassification
was extended to April 17, 2003 by Executive Order 13,142. (169) The amended Executive
Order 12,958 further extends the deadline for automatic declassification to
December 31, 2006, in order to allow government agencies additional time to
properly review millions of pages of classified materials. (170) The amended Executive
Order provides that on that date, all classified records that are more than twenty-five years old, and have been determined to have permanent historical value, are to
be automatically declassified even if those records have not yet been reviewed for
declassification. (171) In addressing automatic declassification, courts have refused to
order disclosure of information more than twenty-five years old until the automatic
disclosure provisions take effect. (172)

The automatic declassification mechanism applies to information currently
classified under any predecessor executive order (173) and will lead to creation of a
governmentwide declassification database. (174) For records that fall within any
exception to amended Executive Order 12,958's automatic declassification
mechanism, agencies are required to establish "a program for systematic
declassification review" that focuses on any need for continued classification of such
records. (175)

As did prior executive orders, amended Executive Order 12,958 provides for a
"mandatory declassification review" program. (176) This mechanism allows any person -- entirely apart from the FOIA context -- to request that an agency review its national
security records for declassification. (177) Traditionally, the mandatory review program
has been used by researchers interested in gaining access to papers maintained by
presidential libraries, which are not accessible under the FOIA; under this provision,
however, any person may submit a mandatory review request to an agency. (178)
Unlike under the FOIA, though, such requesters do not have the right to judicial
review of the agency's action. (179) Instead, amended Executive Order 12,958
authorizes persons to appeal an agency's final decision under this program to the
Interagency Security Classification Appeals Panel. (180) To alleviate some of the
burden of this program, Executive Order 12,958 contains a provision that allows an
agency to deny a mandatory review request if it has already reviewed the
information for declassification within the past two years. (181)

For declassification decisions, amended Executive Order 12,958 authorizes
agencies to apply a balancing test -- i.e., to determine "whether the public interest in
disclosure outweighs the damage to national security that might reasonably be
expected from disclosure." (182) Though Executive Order 12,958, as amended, specifies
that this provision is implemented solely as a matter of administrative discretion and
creates no new right of judicial review, it is significant that no such provision existed
under prior orders. (183) Courts have held that national security officials are responsible
for applying this balancing test at the time of the original classification decision, and
that these officials logically are in the best position to weigh the public interest in
disclosure against the threat to national security. (184)

Additional Considerations

Two additional considerations addressed initially by the original version of
Executive Order 12,958, and then continued in the amended version, have already
been recognized by the courts. First, the "Glomar" response is explicitly
incorporated into the order: "An agency may refuse to confirm or deny the existence
or nonexistence of requested records whenever the very fact of their existence or
nonexistence is itself classified under this order." (185) (For a further discussion of this
point, see Exemption 1, In Camera Submissions, above.)

Second, the "mosaic" or "compilation" approach -- the concept that apparently
harmless pieces of information, when assembled together, could reveal a damaging
picture -- is recognized in amended Executive Order 12,958. (186) Compilations of
otherwise unclassified information may be classified if the "compiled information
reveals an additional association or relationship that: (1) meets the [order's
classification] standards, and (2) is not otherwise revealed in the individual items of
information." (187) This "mosaic" approach was presaged by a decision of the Court of
Appeals for the District of Columbia Circuit in 1980 (188) and has been endorsed by
other courts. (189) The D.C. Circuit has also reaffirmed that even if there is other
information that if released "would pose a greater threat to the national security,"
Exemption 1 "'bars the government from prying loose even the smallest bit of
information that is properly classified.'" (190)

Another aspect of invoking Exemption 1 is the FOIA's general requirement
that agencies segregate and release nonexempt information, unless the segregated
information would have no meaning. (191) The duty to release information that is
"reasonably segregable" (192) applies in cases involving classified information as well as
those involving nonclassified information. (193) In recent years, the D.C. Circuit has
reemphasized the FOIA's segregation requirement in a series of decisions, (194) two of
which involved records with-held pursuant to Exemption 1. (195) In the first of these
two decisions, the D.C. Circuit, although upholding the district court's substantive
determination that the records contained information qualifying for Exemption 1
protection, nonetheless remanded the case to the district court because it had failed
to "make specific findings of segregability for each of the withheld documents." (196) In
the second decision, the D.C. Circuit observed that although the agency might have
been "aware of its duties under FOIA to disclose all nonsegregable information," it
did not provide the court with an "adequate explanation" on which to base such a
finding. (197) Accordingly, the D.C. Circuit also remanded the case to the district court
for a more detailed description of the information withheld. (198) (For a further
discussion of this point, see Litigation Considerations, "Reasonably Segregable
Requirements," below.)

Additionally, agencies should also be aware of the FOIA's "(c)(3) exclusion." (199)
This special records exclusion applies to certain especially sensitive records
maintained by the Federal Bureau of Investigation, which concern foreign
intelligence, counterintelligence or international terrorism matters: Where the
existence of such records is itself a classified fact, the FBI may, so long as the
existence of the records remains classified, treat the records as not subject to the
requirements of the FOIA. (200) (See the discussion of this provision under Exclusions,
below.)

Homeland Security-Related Information

Due to the horrific events of September 11, 2001, and their aftermath
throughout the world, no discussion of national security would be complete without
emphasizing the efforts of the federal government to protect sensitive national
security information, particularly regarding matters of critical infrastructure,
weapons of mass destruction, and the general threat of terrorism. In response to
the attacks of September 11, 2001, the federal government has undergone its largest
and most wide-ranging reorganization in more than fifty years. (201) This
reorganization -- and the creation of the Department of Homeland Security, under
the Homeland Security Act of 2002, (202) in addition to the Homeland Security Council
within the White House (203) -- centralized the federal government's domestic national
security efforts in order to protect Americans from the ever-increasing threat of
terrorism. These changes have greatly impacted many aspects of the operation of
the federal government, including the administration of the FOIA. (204) Much greater
emphasis is now placed on the protection of information that could expose the
nation's critical infrastructure, military, government, and citizenry to an increased risk
of attack. (205) As a result of these changes, federal departments and agencies should
carefully consider the sensitivity of any information the disclosure of which could
reasonably be expected to cause national security harm. (206)

On March 19, 2002, the White House Chief of Staff issued a directive to the
heads of all federal departments and agencies addressing the need to safeguard
and wherever appropriate protect such information. (207) This directive is implemented
by an accompanying memorandum from the Acting Director of the Information
Security Oversight Office and the Co-Directors of the Department of Justice's Office
of Information and Privacy. (208) The implementing guidance contains two points that
are especially relevant to amended Executive Order 12,958, though it was issued
prior to the most recent amendment.

The first of these points concerns sensitive homeland security-related
information that is currently classified; the classified status of such information
should be maintained in accordance with applicable provisions of the amended
Executive Order 12,958. (209) This includes extending the duration of classification as
well as exempting such information from automatic declassification as
appropriate. (210) The second point concerns previously unclassified or declassified
information, (211) which may be classified or reclassified, as appropriate, pursuant to
the amended executive order. (212) In this regard, if the information has been the
subject of a previous access demand, such as a FOIA request, any such classification
or reclassification is subject to the special requirements of section 1.7(d) of amended
Executive Order 12,958. (213)

As a final note, agencies should be aware that although various government
agencies today might use newly created terms to refer to categories of homeland
security-related information -- such as "Sensitive Homeland Security Information"
(commonly referred to as "SHSI"), (214) "Sensitive But Unclassified Information"
(sometimes referred to as "SBU information"), (215) or "Critical Infrastructure
Information" (commonly referred to as "CII") (216) -- these categorical labels do not
indicate classification pursuant to Executive Order 12,958. (217) Terms such as "SHSI"
and "SBU" describe broad types of potentially sensitive information that might not
even fall within any of the FOIA exemptions. (218) It is significant to note that none of
these new homeland security-related terms is included in Executive Order 12,958, as
amended, and that the use of these labels alone does not provide for any protection
from disclosure under any exemption, let alone Exemption 1. (219) A separate statute
implements protections for "CII," and these protections are incorporated into the
FOIA through Exemption 3. (220) It is worth reiterating that the protections afforded
classified information under Exemption 1 can be applied only to information that has
been properly classified under Executive Order 12,958, as amended.

7. SeeHalpern v. FBI, 181 F.3d 279,
289-90 (2d Cir. 1999); Campbell v. United States Dep't of Justice,
164 F.3d 20, 29 (D.C. Cir. 1998) ("[A]bsent a request by the agency to reevaluate
an Exemption 1 determination based on a new executive order . . . the court
must evaluate the agency's decision under the executive order in force at
the time the classification was made."); Lesar v. United States Dep't
of Justice, 636 F.2d 472, 480 (D.C. Cir. 1980) (concluding that "a reviewing
court should assess the agency's classification decision according to the
guidelines established in the Executive Order in effect at the time classification
took place"); see alsoBonner v. United States Dep't of State,
928 F.2d 1148, 1152 (D.C. Cir. 1991) (rejecting plaintiff's suggestion that
court assess propriety of agency's classification determination at time
of court's review, because to do so would subject agencies and courts to
"an endless cycle of judicially mandated reprocessing"); King v. Dep't
of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987) (finding that "[o]nly
when a reviewing court contemplates remanding the case to the agency to
correct a deficiency in its classification determination is it necessary
to discriminate between the order governing for purposes of review and any
that may have superseded it"); Assassination Archives & Research
Ctr. v. CIA, 177 F. Supp. 2d 1, 8-9 (D.D.C. 2001) (finding that CIA
properly classified subject records under Executive Order 10,501 because
that order was in effect when agency made classification decision), aff'd,
334 F.3d 55 (D.C. Cir. 2003); Keenan v. Dep't of Justice, No. 94-1909,
slip op. at 7-8 (D.D.C. Mar. 24, 1997) (rejecting argument that agency should
apply Executive Order 12,958 because it did not produce supporting affidavit
until after effective date of new order), renewed motion for summary
judgment granted in part & denied in part on other grounds (D.D.C.
Dec. 16, 1997); cf.Summers v. Dep't of Justice, 140 F.3d
1077, 1082 (D.C. Cir. 1998) (remanding to district court because district
court failed to articulate whether it was applying Executive Order 12,356
or Executive Order 12,958 to evaluate Exemption 1 withholdings, even though
district court record made it clear), on remand, No. 87-3168, slip
op. at 2 (D.D.C. Apr. 19, 2000) (applying Executive Order 12,958 to uphold
Exemption 1 withholdings).

8. King, 830 F.2d at 217; see alsoCampbell,
164 F.3d at 31 n.11 (recognizing that when court remands to agency for rereview
of classification, such review is performed under superseding executive
order).

21. Halperin, 629 F.2d at 148; see alsoBowers v. United States Dep't of Justice, 930 F.2d 350, 357 (4th
Cir. 1991) (stating that "a court should hesitate to substitute its judgment
of the sensitivity of the information for that of the agency"); Military
Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981) (emphasizing
that deference is due agency's classification judgment); Edmonds v. FBI,
272 F. Supp. 2d 35, 45-46 (D.D.C. 2003) (same); Snyder v. CIA, 230
F. Supp. 2d 17, 24 (D.D.C. 2002) (observing that agency is in best position
to make "ultimate assessment of harm to intelligence sources and methods").

22. See, e.g., Stillman v. CIA, 319
F.3d 546, 548 (D.C. Cir. 2003) (criticizing the district court because it
failed "to evaluate the pleadings and affidavits to be submitted by the
Government in defense of its classification decision," thereby erroneously
withholding the deference that ordinarily is owed to national security officials)
(non-FOIA case); King v. United States Dep't of Justice, 830 F.2d
210, 217 (D.C. Cir. 1987) (concluding that "the court owes substantial weight
to detailed agency explanations in the national security context"); Goldberg
v. United States Dep't of State, 818 F.2d 71, 79-80 (D.C. Cir. 1987);
see alsoCtr. for Nat'l Sec. Studies v. United States Dep't of
Justice, 331 F.3d 918, 928 (D.C. Cir. 2003) (noting that "the judiciary
is in an extremely poor position to second-guess the executive's judgment
in this area") (Exemption 7(A)), cert. denied, 124 S. Ct. 1041 (2004);
Wheeler, 271 F. Supp. 2d at 140 (declining to substitute judgment
of plaintiff or court for that of agency classification authority simply
on basis that classification action required exercise of some discretion);
ACLU v. United States Dep't of Justice, 265 F. Supp. 2d 20, 27 (D.D.C.
2003) (reminding that although the agency's declarations "are entitled to
substantial weight, they must nevertheless afford the requester an ample
opportunity to contest, and the Court to review, the soundness of the withholding");
Snyder, 230 F. Supp. 2d at 22 (ruling that substantial weight should
be given to agency declarations so long as they are reasonably specific
and detailed (applying Halperin, 629 F.2d at 148)); Linn v. United
States Dep't of Justice, No. 92-1406, 1995 WL 631847, at *26 (D.D.C.
Aug. 22, 1995) (indicating that role of courts in reviewing Exemption 1
claims "is to determine whether the agency has presented a logical connection
between its use of the exemption and the legitimate national security concerns
involved; the Court does not have to ascertain whether the underlying facts
of each specific application merit the agency's national security concerns");
Steinberg v. United States Dep't of Justice, 801 F. Supp. 800, 802-03
(D.D.C. 1992) (rejecting plaintiff's attack that coded Vaughn Index
constituted inadequate "boilerplate," especially given "nature of underlying
materials"), aff'd in pertinent part, 23 F.3d 548, 553 (D.C. Cir.
1994); cf.Dep't of the Navy v. Egan, 484 U.S. 518, 529-30
(1988) (allowing deference to agency expertise in granting of security clearances)
(non-FOIA case).

24. Halpern v. FBI, 181 F.3d 279, 293 (2d Cir.
1999) (declaring that agency's "explanations read more like a policy justification"
for Executive Order 12,356, that the "affidavit gives no contextual description,"
and that it fails to "fulfill the functional purposes addressed in Vaughn");
Campbell v. United States Dep't of Justice, 164 F.3d 20, 31, 37 (D.C.
Cir. 1998) (remanding to district court to allow the FBI to "further justify"
its Exemption 1 claim because its declaration failed to "draw any connection
between the documents at issue and the general standards that govern the
national security exemption"), on remand, 193 F. Supp. 2d 29, 37
(D.D.C. 2001) (finding declaration insufficient where it merely concluded,
without further elaboration, that "disclosure of [intelligence information]
. . . could reasonably be expected to cause serious damage to
the national security"); Oglesby v. United States Dep't of the Army,
79 F.3d 1172, 1179-84 (D.C. Cir. 1996) (rejecting as insufficient certain
Vaughn Indexes because agencies must itemize each document
and adequately explain reasons for nondisclosure); Rosenfeld v. United
States Dep't of Justice, 57 F.3d 803, 807 (9th Cir. 1995) (affirming
district court disclosure order based upon finding that government failed
to show with "any particularity" why classified portions of several documents
should be withheld); Wiener v. FBI, 943 F.2d 972, 978-79 (9th Cir.
1991) (rejecting as inadequate agency justifications contained in coded
Vaughn affidavits, based upon view that they consist of "boilerplate"
explanations not "tailored" to particular information being withheld pursuant
to Exemption 1); Oglesby v. United States Dep't of the Army, 920
F.2d 57, 66 n.12 (D.C. Cir. 1990) (noting degree of specificity required
in public Vaughn affidavit in Exemption 1 case, especially with regard
to agency's obligation to segregate and release nonexempt material); Greenberg
v. United States Dep't of Treasury, 10 F. Supp. 2d 3, 15, 26-27 (D.D.C.
1998) (reserving judgment on Exemption 1 claims of CIA and FBI, and ordering
new affidavits because agencies' Vaughn Indexes were found to be
insufficient to permit court to engage in proper evaluation); Keenan
v. Dep't of Justice, No. 94-1909, slip op. at 8-11 (D.D.C. Mar. 24,
1997) (finding to be insufficient coded Vaughn Index that merely
recited executive order's language without providing information about contents
of withheld information), renewed motion for summary judgment denied
in pertinent part (D.D.C. Dec. 16, 1997).

25. See, e.g., Doherty v. United States
Dep't of Justice, 775 F.2d 49, 53 (2d Cir. 1985) (adjudging that "the
court should restrain its discretion to order in camera review"); Hayden
v. NSA, 608 F.2d 1381, 1387 (D.C. Cir. 1979) (stating that "[w]hen the
agency meets its burden by means of affidavits, in camera review is neither
necessary nor appropriate"); Pub. Educ. Ctr., Inc. v. DOD, 905 F.
Supp. 19, 22 (D.D.C. 1995) (declining in camera review of withheld videotapes
after according substantial weight to agency's affidavit that public disclosure
would harm national security); King v. United States Dep't of Justice,
586 F. Supp. 286, 290 (D.D.C. 1983) (characterizing in camera review as
last resort), aff'd in part & rev'd in part on other grounds,
830 F.2d 210 (D.C. Cir. 1987); cf.Stillman, 319 F.3d at 548
(noting in general that in camera affidavits can effectively supplement
public affidavits to explain agency classification decisions) (non-FOIA
case); Young v. CIA, 972 F.2d 536, 538-39 (4th Cir. 1992) (holding
that district court did not abuse its discretion by refusing to review documents
in camera -- despite small number -- because agency's affidavits found
sufficiently specific to meet required standards for proper withholding).
But see, e.g., Patterson v. FBI, 893 F.2d 595, 599 (3d Cir.
1990) (finding in camera review of two documents appropriate when agency
description of records was insufficient to permit meaningful review and
to verify good faith of agency in conducting its investigation); Allen
v. CIA, 636 F.2d 1287, 1291 (D.C. Cir. 1980) (holding that conclusory
affidavit by agency requires remand to district court for in camera inspection
of fifteen-page document); Trulock v. United States Dep't of Justice,
257 F. Supp. 2d 48, 51 (D.D.C. 2003) (observing that documents should be
reviewed in camera when declarations are insufficient to demonstrate validity
of withholdings); Armstrong v. Executive Office of the President,
No. 89-142, slip op. at 4-8 (D.D.C. July 28, 1995) (ordering in camera review
of four of seventeen documents at issue because government's explanation
for withholdings insufficient, but denying plaintiff's request that court
review documents merely on basis that government subsequently released previously
withheld material), aff'd on other grounds, 97 F.3d 575 (D.C. Cir.
1996); Moore v. FBI, No. 83-1541, 1984 U.S. Dist. LEXIS 18732, at
*9 (D.D.C. Mar. 9, 1984) (finding in camera review particularly appropriate
when only small volume of documents were involved and government made proffer),
aff'd, 762 F.2d 138 (D.C. Cir. 1985) (unpublished table decision);
cf.Jones v. FBI, 41 F.3d 238, 242-44 (6th Cir. 1994) (finding
in camera inspection necessary, not because FBI acted in bad faith with
regard to plaintiff's FOIA request, but due to evidence of illegality with
regard to FBI's underlying investigation); Wiener, 943 F.2d at 979
& n.9 (noting that in camera review by district court cannot "replace"
requirement for sufficient Vaughn Index and can only "supplement"
agency's justifications contained in affidavits).

30. McGehee v. CIA, 711 F.2d 1076, 1077 (D.C.
Cir. 1983); see alsoWheeler, 271 F. Supp. 2d at 139 (finding
that it was not at all proof of bad faith to show merely that agency handled
two similar FOIA requests in different manner); Wash. Post Co. v. DOD,
No. 84-2949, 1987 U.S. Dist. LEXIS 16108, at *12 (D.D.C. Feb. 25, 1987)
(deciding that addition of second classification category at time of litigation
"does not create an inference of 'bad faith' concerning the processing of
plaintiff's request or otherwise implicating the affiant's credibility");
cf.Gilmore v. NSA, No. C92-3646, 1993 U.S. Dist. LEXIS 7694,
at **28-30 (N.D. Cal. May 3, 1993) (holding that subsequent release by agency
of some material initially withheld pursuant to Exemption 1 is not any indication
of "bad faith").

33. CIA v. Sims, 471 U.S. at 179-80; see
also, e.g., Zadvydas v. Davis, 533 U.S. 678, 696 (2001) (noting
that "terrorism or other special circumstances" may warrant "heightened
deference") (non-FOIA case); Dep't of the Navy v. Egan, 484 U.S.
518, 530 (1988) (explaining that "courts traditionally have been reluctant
to intrude upon the authority of the executive in national security affairs")
(non-FOIA case); Ctr. for Nat'l Sec. Studies, 331 F.3d at 918 (rejecting
"artificial limits" on deference, and explaining that "deference depends
on the substance of the danger posed by disclosure -- that is, harm to the
national security -- not the FOIA exemption invoked").

38. Id.; see alsoBassiouni v. CIA,
No. 02-C-4049, 2004 U.S. Dist. LEXIS 5290, at **14-15 (N.D. Ill. Mar. 31,
2004) (deferring to agency determination of harm, and further noting that
"[i]n the realm of intelligence, a lot can occur in a short period of time")
(appeal pending).

40. SeeRush v. Dep't of State, 748
F. Supp. 1548, 1554 (S.D. Fla. 1990) (finding that plaintiff, who retired
from government service in 1977, failed to rebut opinion of current government
officials on necessity of continued classification); cf.Goldberg
v. United States Dep't of State, 818 F.2d 71, 79-80 (D.C. Cir. 1987)
(accepting classification officer's national security determination even
though more than 100 ambassadors did not initially classify information).

45. SeeFOIA Update, Vol. XVI, No. 2,
at 4, 7 (compiling and discussing cases in which courts have rejected Exemption
1 claims and in some cases have ordered disclosure, but noting that such
disclosure orders nearly always were overturned on appeal); cf.AFL-CIO
v. FEC, 333 F.3d 168, 179 (D.C. Cir. 2003) (concluding that the agency's
disclosure policies in relation to the FOIA might be unconstitutional as
applied, and requiring the agency to "provide a separate First Amendment
justification for publicly disclosing" information "relating to speech or
political activity" that it compiled for law enforcement purposes) (Exemption
7(C)).

50. Id. at 8. But seeKeenan v. Dep't
of Justice, No. 94-1909, slip op. at 8-9 (D.D.C. Dec. 16, 1997) (ordering
upon in camera inspection the release of document segments that the agency
withheld pursuant to Exemption 1, because the agency "failed to demonstrate"
how disclosure of information ranging from thirty-two to forty-six years
old could "continue to damage the national security"); Springmann v.
United States Dep't of State, No. 93-1238, slip op. at 9-11 (D.D.C.
Apr. 21, 1997) (ruling that disclosure of two paragraphs in embassy report
about American employee engaging in religiously offensive behavior in Saudi
Arabia would not harm national security), summary judgment granted to
defendant upon reconsideration (D.D.C. Feb. 24, 2000) (ruling ultimately
in agency's favor based upon in camera declaration).

68. See, e.g., Pub. Citizen v. Dep't of
State, 276 F.3d 634, 645 (D.C. Cir. 2002) (reaffirming that burden is
on requester to establish that specific record in public domain duplicates
that being withheld (citing Afshar v. Dep't of State, 702 F.2d 1125,
1132 (D.C. Cir. 1983))); Frugone v. CIA, 169 F.3d 772, 774 (D.C.
Cir. 1999) (finding that disclosure made by employee of agency other than
agency from which information is sought is not official and thus does not
constitute waiver).

69. Afshar, 702 F.2d at 1130; seeAssassination
Archives & Research Ctr. v. CIA, 334 F.3d 55, 60 (D.C. Cir. 2003)
(holding that FOIA plaintiff must show that previous disclosure duplicates
specificity of withheld material to establish waiver of exemptions, and
noting that CIA's prior disclosure of some intelligence methods employed
in Cuba does not waive use of exemptions for all methods); James Madison
Project v. NARA, No. 02-5089, 2002 WL 31296220, at *1 (D.C. Cir. Oct.
11, 2002) (affirming that the "party claiming that public disclosure prevents
withholding the same information bears the burden of showing that the specific
information at issue has been officially disclosed"); Pub. Citizen,
276 F.3d at 645 (rejecting plaintiff's waiver claim as "speculation" where
plaintiff failed to demonstrate that specific information had been released
into public domain, even though records were publicly accessible in NARA
reading room upon request); Wheeler v. CIA, 271 F. Supp. 2d 132,
140 (D.D.C. 2003) (rejecting plaintiff's contention that foreign nation's
knowledge of past intelligence activities creates general waiver of all
intelligence activities related to that nation); Ctr. for Int'l Envtl.
Law v. Office of the United States Trade Representative, 237 F. Supp.
2d 17, 20 (D.D.C. 2002) (holding that plaintiff failed to show that information
was in public domain when it merely pointed to other publically available
documents dealing with same general subject matter); Billington v. Dep't
of Justice, 11 F. Supp. 2d 45, 54-56 (D.D.C. 1998) (rejecting plaintiff's
unsubstantiated allegations that agency had previously released subject
information, and concluding that because FBI "may have released similar
types of information in one case does not warrant disclosure" in this case),
summary judgment granted in pertinent part, 69 F. Supp. 2d 128, 135
(D.D.C. 1999), aff'd in part, vacated in part & remanded all on other
grounds, 233 F.3d 581 (D.C. Cir. 2000) (Exemption 1 decision not challenged
on appeal); Meeropol v. Reno, No. 75-1121, slip op. at 6-7 (D.D.C.
Mar. 26, 1998) (ruling that plaintiffs failed to carry "burden of production"
in asserting withheld information about atomic bomb spies Julius and Ethel
Rosenberg available in public domain) (Exemptions 1 and 7(D)); Scott
v. CIA, 916 F. Supp. 42, 50 (D.D.C. 1996) (ordering plaintiff to compile
list of information allegedly in public domain "with specific documentation
demonstrating the legitimacy of such claims" and requiring release of that
information if actually in public domain unless government demonstrates
its release "threatens the national security"); Pfeiffer v. CIA,
721 F. Supp. 337, 342 (D.D.C. 1989) (holding that plaintiff must do more
than simply identify "information that happens to find its way into a published
account" to meet this burden); cf.Davis v. United States Dep't
of Justice, 968 F.2d 1276, 1279 (D.C. Cir. 1992) (stating that a "party
who asserts . . . material publicly available carries the burden
of production on that issue . . . because the task of
proving the negative -- that the information has not been revealed
-- might require the government to undertake an exhaustive, potentially
limitless search") (Exemptions 3, 7(C), and 7(D)). But seeWash.
Post v. DOD, 766 F. Supp. 1, 12-13 (D.D.C. 1991) (suggesting that agency
has ultimate burden of proof when comparing publicly disclosed information
with information being withheld, determining whether information is identical
and, if not, determining whether release of slightly different information
would harm national security).

70. See Exec. Order No. 12,958, as amended,
Â§ 1.1(b), 68 Fed. Reg. 15,315 (Mar. 28, 2003) (stating that "[c]lassified
information shall not be declassified automatically as a result of any unauthorized
disclosure of identical or similar information"), reprinted in 50
U.S.C.A. Â§ 435 note (West Supp. 2003) and summarized inFOIA
Post (posted 4/11/03); see alsoPub. Citizen v. Dep't of
State, 11 F.3d 198, 201 (D.C. Cir. 1993) (holding that "an agency official
does not waive FOIA exemption 1 by publicly discussing the general subject
matter of documents which are otherwise properly exempt from disclosure
under that exemption") (decided under Executive Order 12,356).

71. See, e.g., Hoch v. CIA, No. 88-5422,
1990 WL 102740, at *1 (D.C. Cir. July 20, 1990) (concluding that without
official confirmation, "clear precedent establishes that courts will not
compel [an agency] to disclose information even though it has been the subject
of media reports and speculation"); see alsoFrugone, 169
F.3d at 775 (holding that letter from OPM advising plaintiff that his employment
records were in CIA custody is not "tantamount to an official statement
of the CIA"); Hunt v. CIA, 981 F.2d 1116, 1120 (9th Cir. 1992) (finding
that although some information about subject of request may have been made
public by other governmental agencies, CIA's "Glomar" response in Exemption
3 context was not defeated); Simmons v. United States Dep't of Justice,
796 F.2d 709, 712 (4th Cir. 1986) (ruling that there had been no "widespread
dissemination" of information in question); Abbotts v. NRC, 766 F.2d
604, 607-08 (D.C. Cir. 1985) (reasoning that even if the withheld data were
the same as an estimate in the public domain, that is not the same as knowing
the NRC's official policy as to the "proper level of threat a nuclear
facility should guard against"); Afshar, 702 F.2d at 1130-31 (observing
that a foreign government can ignore "[u]nofficial leaks and public surmise
. . . but official acknowledgment may force a government
to retaliate"); Philippi v. CIA, 665 F.2d 1325, 1332 (D.C. Cir. 1981)
(concluding that a disclosure by a former Director of Central Intelligence
did not result in waiver, and reasoning perceptively that "without the disclosure
of the documents demanded by [plaintiff], foreign analysts remain in the
dark as to the provenience of the information appearing in published reports");
Edmonds v. FBI, 272 F. Supp. 2d 35, 49 (D.D.C. 2003) (holding that
anonymous leak of information concerning FBI counterterrorism activities
did not prevent agency from invoking exemption, because disclosures in tandem
would amount to official confirmation of authenticity); Rubin v. CIA,
No. 01 CIV 2274, 2001 WL 1537706, at *5 (S.D.N.Y. Dec. 3, 2001) (finding
that plaintiff's mere showing that some private publication alleged that
CIA maintained files on subject was not evidence of official disclosure
and, therefore, that agency's "Glomar" position was not defeated); Nat'l
Sec. Archive v. CIA, No. 99-1160, slip op. at 12-13 (D.D.C. July 31,
2000) (ruling that Exemption 1 can be waived only through "the stamp of
truth that accompanies official disclosure," even where requested information
is otherwise "common knowledge in the public domain," and that "[d]isclosure
by other agencies of CIA information does not preempt the CIA's ability
to withhold that information"); Arabian Shield Dev. Co. v. CIA, No.
3-98-0624, 1999 WL 118796, at *3 n.5 (N.D. Tex. Feb. 26, 1999) (rejecting
plaintiff's citation to "unspecified public news reports" identifying individuals
as CIA agents and holding that "public speculation and disclosure .
. . is quite different from official disclosure"), aff'd per
curiam, 208 F.3d 1007 (5th Cir. 2000) (unpublished table decision);
Steinberg v. United States Dep't of Justice, 801 F. Supp. 800, 802
(D.D.C. 1992) (recognizing that "[p]assage of time, media reports and informed
or uninformed speculation based on statements by participants cannot be
used . . . to undermine [government's] legitimate interest
in protecting international security [information]"), aff'd in pertinent
part, 23 F.3d 548, 553 (D.C. Cir. 1994); Van Atta v. Def. Intelligence
Agency, No. 87-1508, 1988 WL 73856, at **2-3 (D.D.C. July 6, 1988) (holding
that disclosure of information to foreign government during diplomatic negotiations
was not "public disclosure"). But seeLawyers Comm. for Human
Rights v. INS, 721 F. Supp. 552, 569 (S.D.N.Y. 1989) (ruling that Exemption
1 protection is not available when same documents were disclosed by foreign
government or when same information was disclosed to media in "off-the-record
exchanges").

75. Id. at 421; see alsoEdmonds,
272 F. Supp. 2d at 49 (declaring that when an agency provides classified
information to a congressional committee it "does not deprive [itself] of
the right to classify the information under Exemption 1").

77. Wash. Post Co. v. DOD, No. 84-3400, slip
op. at 3 (D.D.C. Sept. 22, 1986) (refusing to find official disclosure through
abandonment of documents in Iranian desert following aborted rescue mission
or through government's introduction of them into evidence in espionage
trial).

78. Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C.
Cir. 1990); see alsoAssassination Archives & Research Ctr.,
334 F.3d at 61 (determining that previous disclosure of information concerning
Cuban operatives pursuant to John F. Kennedy Assassination Records Collection
Act, 44 U.S.C. Â§ 2107 note (2000), did not waive exemptions for specific
CIA compendium of information concerning CIA operatives and intelligence
assets in Cuba during 1960s); Students Against Genocide v. Dep't of State,
257 F.3d 828, 835 (D.C. Cir. 2001) (holding that a prior release of photographs
similar to those withheld did not waive Exemption 1, because the fact that
"some 'information resides in the public domain does not eliminate the possibility
that further disclosures can cause harm to [national security]'" (quoting
Fitzgibbon, 911 F.2d at 766)); Afshar, 702 F.2d at 1130, 1133-34
(determining that agency review of books written by former agency officials
does not create official acknowledgment of information or waive applicability
of FOIA exemptions); Kelly v. CIA, No. 00-2498, slip op. at 10, 12
(D.D.C. Aug. 8, 2002) (holding that official release of general agency memo
concerning "agency-academic relations" did not waive Exemption 1 protection
with regard to specific and detailed agency-academic information (citing
Fitzgibbon, 911 F.2d at 765-66)), modified on other grounds,
No. 00-2498, slip op. at 1 (D.D.C. Sept. 25, 2002), appeal on adequacy
of search dismissed on procedural grounds, No. 02-5384, 2003 WL 21804101
(D.C. Cir. July 31, 2003). But seeNat'l Sec. Archive, No.
99-1160, slip op. at 15-16 (D.D.C. July 31, 2000) (ordering CIA to disclose
fact that it kept biographies on seven former East European heads of state
because "Glomar" response was waived by CIA's 1994 admission that it kept
biographies on all "heads of state" -- a "clear and narrowly defined term
that is not subject to multiple interpretations," but noting that CIA's
"Glomar" response otherwise would have been appropriate); Krikorian v.
Dep't of State, 984 F.2d 461, 467-68 (D.C. Cir. 1993) (remanding to
district court to determine whether information excised in one document
"officially acknowledged" by comparing publicly available record with record
withheld; leaving to district court's discretion whether this could be better
accomplished by supplemental agency affidavit or by in camera inspection).

97. Levine v. Dep't of Justice, No. 83-1685,
slip op. at 6 (D.D.C. Mar. 30, 1984) (concluding that regardless of a requester's
loyalty, the release of documents to him could "open the door to secondary
disclosure to others").

98. Martens v. United States Dep't of Commerce,
No. 88-3334, 1990 U.S. Dist. LEXIS 10351, at *10 (D.D.C. Aug. 6, 1990) (Privacy
Act case); see alsoMiller v. Casey, 730 F.2d 773, 778 (D.C.
Cir. 1984) (accepting that plaintiff's security clearance was not an issue
in denying access to requested information); cf.United States
Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S.
749, 771 (1989) (stating that "the identity of the requester has no bearing
on the merits of his or her FOIA request") (Exemption 7(C)); FOIA Update,
Vol. X, No. 2, at 5 (advising that as general rule all FOIA requesters should
be treated alike).

101. See Exec. Order No. 12,958, as amended
(introductory statement also noting that "our Nation's progress depends
on the free flow of information"); see also Information Security
Oversight Office Ann. Rep. 6 (2003) (explaining that "what is most notable
about the new amendment is what did not change with respect to the fundamentals
that make the security classification system work"); FOIA Post,
"Executive Order on National Security Classification Amended"(posted
4/11/03) (discussing amendments to Executive Order 12,958).

102. Exec. Order No. 12,958, as amended, Â§ 1.1(a)(4);
see also 32 C.F.R. Â§ 2001.10(c) (2003) (ISOO directive explaining
that ability of agency classifier to identify and describe damage to national
security caused by unauthorized disclosure is critical aspect of classification
system).

103. Halperin v. CIA, 629 F.2d 144, 149 (D.C.
Cir. 1980); seeAftergood v. CIA, No. 98-2107, 1999 U.S. Dist.
LEXIS 18135, at *9 (D.D.C. Nov. 12, 1999) (declaring that "the law does
not require certainty or a showing of harm" that has already occurred);
cf.Snepp v. United States, 444 U.S. 507, 513 n.8 (1980) (articulating
that "[t]he problem is to ensure, in advance, and by proper [CIA prepublication
review] procedures, that information detrimental to the national interest
is not published") (non-FOIA case); ACLU v. United States Dep't of Justice,
265 F. Supp. 2d 20, 30 (D.D.C. 2003) (reiterating that "'[t]he test is not
whether the court personally agrees in full with the [agency's] evaluation
of the danger -- rather, the issue is whether on the whole record the Agency's
judgment objectively survives the test of reasonableness, good faith, specificity,
and plausibility in this field of foreign intelligence in which the [agency]
is expert'" (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir.
1982))).

105. See, e.g., Krikorian v. Dep't of State,
984 F.2d 461, 465 (D.C. Cir. 1993) (finding that telegram reporting discussion
between agency official and high-ranking foreign diplomat regarding terrorism
was properly withheld as foreign government information; release would "jeopardize
'reciprocal confidentiality'" between governments) (decided under Executive
Order 12,356); Pinnavaia v. FBI, No. 03-112, slip op. at 8 (D.D.C.
Feb. 25, 2004) (holding that it was reasonable to classify "sensitive information
gathered by the United States either about or by a foreign country," because
the disclosure "could have negative diplomatic consequences"); McErlean
v. Dep't of Justice, No. 97-7831, 1999 WL 791680, at *5 (S.D.N.Y. Sept.
30, 1999) (protecting identities and information obtained from foreign governments)
(decided under original version of Executive Order 12,958); Ajluni v.
FBI, No. 94-325, 1996 WL 776996, at *4 (N.D.N.Y. July 13, 1996) (rejecting
plaintiff's assertion that for withheld information to qualify as foreign
government information the agency "should be forced to identify at least
which government supplied the information," because to do so would
cause such sources of information "to dry up") (decided under Executive
Order 12,356); Badalementi v. Dep't of State, 899 F. Supp. 542, 546-47
(D. Kan. 1995) (categorizing record reflecting negotiations among United
States, Spain, and Italy regarding extradition of alleged drug smuggler
as foreign government information) (decided under Executive Order 12,356).

109. See, e.g., Rubin, No. 01 CIV 2274,
2001 WL 1537706, at **3-4 (S.D.N.Y. Dec. 3, 2001) (holding that CIA properly
refused to confirm or deny existence of records concerning two deceased
British poets, because acknowledgment could negatively impact foreign relations
and compromise a source); Springmann v. United States Dep't of State,
No. 93-1238, slip op. at 2-3 (D.D.C. Feb. 24, 2000) (accepting agency's
judgment that disclosure of information about American employees' religiously
offensive behavior in Saudi Arabia would adversely affect relations between
United States and that country) (decided under original version of Executive
Order 12,958); Linn v. United States Dep't of Justice, No. 92-1406,
1995 WL 631847, at *26 (D.D.C. Aug. 22, 1995) (finding Exemption 1 withholdings
proper because the agency demonstrated that it has "a present understanding"
with the foreign government that any shared information will not be disclosed)
(decided under Executive Order 12,356); Summers v. United States Dep't
of Justice, No. 89-3300, slip op. at 8-9 (D.D.C. June 13, 1995) (ruling
that disclosure of names of two foreign agents who visited FBI Director
"could severely damage the delicate liaison established between the United
States and this particular foreign government, as well as other governments
that are similarly situated"), remanded, 140 F.3d 1077, 1082 (D.C.
Cir. 1998) (remanding to district court because district court failed to
articulate whether it was applying Executive Order 12,356 or Executive Order
12,958 to evaluate Exemption 1 withholdings, even though district court
record made it clear), on remand, No. 87-3168, slip op. at 2 (D.D.C.
Apr. 19, 2000) (applying original version of Executive Order 12,958 to uphold
Exemption 1 withholdings); United States Comm. for Refugees v. Dep't
of State, No. 91-3303, 1993 WL 364674, at *2 (D.D.C. Aug. 30, 1993)
(holding that disclosure of withheld information could damage nation's foreign
policy by jeopardizing success of negotiations with Haiti on refugee issues
"[because] documents contain . . . frank assessments about
the Haitian government") (decided under Executive Order 12,356); St.
Hilaire v. Dep't of Justice, No. 91-0078, 1992 WL 73545, at *4 (D.D.C.
Mar. 18, 1992) (protecting portions of two cables between Department of
State and its embassies because "[p]rotecting communications between .
. . diplomatic instruments of sovereign states certainly is an appropriate
reason for classifying documents") (decided under Executive Order 12,356),
aff'd, No. 92-5153 (D.C. Cir. Apr. 28, 1994); Van Atta v. Def.
Intelligence Agency, No. 87-1508, 1988 WL 73856, at *2 (D.D.C. July
6, 1988) (protecting information compiled at request of foreign government
for purpose of negotiations) (decided under Executive Order 12,356). But
seeKeenan v. Dep't of Justice, No. 94-1909, slip op. at 9-11
(D.D.C. Dec. 16, 1997) (ordering release of document segments withheld by
the agency pursuant to Exemption 1, because the agency failed to show that
the foreign governments named in documents more than thirty years old "still
wish to maintain the secrecy of their cooperative efforts with" U.S.).

129. Exec. Order No. 12,958, as amended, Â§ 1.7(a)(2);
see alsoBillington, 11 F. Supp. 2d at 58-59 (rejecting plaintiff's
argument that information was classified by FBI to shield agency and foreign
government from embarrassment); Canning v. United States Dep't of Justice,
848 F. Supp. 1037, 1047-48 (D.D.C. 1994) (finding no credible evidence that
the FBI improperly withheld information to conceal the existence of "potentially
inappropriate investigation" of a French citizen, and noting that "if anything,
the agency released sufficient information to facilitate such speculation")
(decided under Executive Order 12,356); Wilson v. Dep't of Justice,
No. 87-2415, 1991 WL 111457, at *2 (D.D.C. June 13, 1991) (rejecting requester's
unsupported claim that information at issue was classified in order to prevent
embarrassment to foreign government official, and holding that "even if
some . . . information . . . were embarrassing
to Egyptian officials, it would nonetheless be covered by Exemption 1 if,
independent of any desire to avoid embarrassment, the information withheld
[was] properly classified") (decided under Executive Order 12,356).

138. Exec. Order No. 12,958, as amended, Â§ 1.7(d);
see also 32 C.F.R. Â§ 2001.13(a); see, e.g., Pub. Citizen
v. Dep't of State, 100 F. Supp. 2d 10, 26 (D.D.C. 2000) (finding that
agency official had "power to classify documents" following receipt of FOIA
request) (decided under original version of Executive Order 12,958), aff'd
on other grounds, 276 F.3d 674 (D.C. Cir. 2002); Council for a Livable
World v. United States Dep't of State, No. 96-1807, slip op. at 8-9
(D.D.C. Nov. 23, 1998) (ordering disclosure of documents where agency official
did not have special classification authority under section 1.8(d) of Executive
Order 12,958 and did not take classification action under direction of official
with such authority) (decided under original version of Executive Order
12,958), summary judgment granted (D.D.C. June 27, 2000), case
dismissed (D.D.C. Aug. 22, 2000) (upholding Exemption 1 claim and dismissing
case following classification of records by different agency official with
proper authority and subsequent submission of further declaration); see
also White House Homeland Security Memorandum, reprinted inFOIA
Post (posted 3/21/02) (directing heads of federal departments and agencies
to ensure appropriate protection of sensitive homeland security-related
information; distributing implementing guidance, in attached memorandum
from Information Security Oversight Office and Office of Information and
Privacy, to effect that such information should be classified or reclassified
pursuant to requirements of section 1.8(d) (now 1.7(d)) of Executive Order
12,958, as appropriate, if it has been subject of prior access request).

142. See Exec. Order No. 12,958, as amended,
Â§ 4.2(b) (providing that an emergency disclosure does not constitute declassification);
see also 32 C.F.R. Â§ 2001.51 (2003) (describing transmission and
reporting procedures for disclosure "in emergency situations, in which there
is an imminent threat to life or in defense of the homeland").

147. See Exec. Order No. 12,958, as amended,
Â§ 1.6(a)(1); see alsoid. Â§ 1.2 (directing that information
may be classified at: (1) the "Top Secret" level, when disclosure could
be expected to cause "exceptionally grave damage" to the national security;
(2) the "Secret" level, when disclosure could be expected to cause "serious
damage" to the national security; and (3) the "Confidential" level, when
disclosure could be expected to cause "damage" to the national security).

156. See Exec. Order No. 12,958, as amended,
Â§ 5.3(b); see alsoid. Â§ 3.5 (establishing mandatory declassification
review program as non-FOIA mechanism for persons to seek access to classified
information generated or maintained by agencies, including papers maintained
by presidential libraries not accessible under FOIA).

161. Seeid.; see also 32 C.F.R.
Â§ 2001.12(a)(1) (2003) (establishing guidelines for the duration of the
classification, and requiring that a "classification authority shall attempt
to determine a date or event that is less than ten years from the date of
the original classification and which coincides with the lapse of the information's
national security sensitivity"); Information Security Oversight Office Ann.
Rep. 6 (2003) (noting that "one of the principal procedures for maintaining
the effectiveness of the classification system is to remove from the safeguarding
system information that no longer requires protection").

166. Exec. Order No. 12,958, as amended, Â§ 3.3(b)
(specifying categories of sensitive information qualifying for exception
to twenty-five-year rule -- including, for example, information that would
reveal identity of confidential human source, disclose U.S. military war
plans still in effect, reveal information that would assist in development
or use of weapons of mass destruction, or violate statute or treaty); see
alsoid. Â§ 3.3(c), (d) (specifying manner in which agencies
are to notify President of, and receive approval for, exceptions to automatic
declassification for specific file series); White House Homeland Security
Memorandum (directing heads of federal departments and agencies to ensure
appropriate protection of sensitive homeland security-related information;
distributing implementing guidance, in attached memorandum, to effect that
such information should be exempted from automatic declassification).

167. Compare Exec. Order No. 12,958, Â§ 3.4(a)
(mandating automatic declassification for twenty-five-year-old information),
with Exec. Order No. 12,356, Â§ 3.1(a) (specifying that passage
of time alone does not compel declassification); see also Exec. Order
No. 12,936, 3 C.F.R. 949 (1994) (separate executive order issued by President
Clinton automatically declassifying millions of pages of old records held
by NARA). But see 50 U.S.C. Â§ 435 note (2000) (requiring Secretary
of Energy and Archivist of the United States to ensure that information
concerning atomic weapons and special nuclear material is not inadvertently
released during automatic declassification of voluminous records under original
version of Executive Order 12,958).

169. Seeid. Â§ 2 (specifying that April
17, 2003, deadline pertains to "records otherwise subject to this paragraph
for which a review or assessment conducted by the agency and confirmed by
the Information Security Oversight Office has determined that they: (1)
contain information that as created by or is under the control of more than
one agency, or (2) are within file series containing information that almost
invariably pertains to intelligence sources or methods").

183. SeeFOIA Update, Vol. XVI, No.
2, at 11 (chart comparing provisions of original version of Executive Order
12,958 with those of predecessor Executive Order 12,356).

184. See, e.g., ACLU v. United States Dep't
of Justice, 265 F. Supp. 2d 20, 32 (D.D.C. 2003) (holding that even
a "significant and entirely legitimate" public desire to view classified
information "simply does not, in an Exemption 1 case, alter the analysis");
Kelly v. CIA, No. 00-2498, slip op. at 15 (D.D.C. Aug. 8, 2002) (observing
that agency should factor in public interest at time that classification
decision is made, and further noting that requester's asserted public interest
in disclosure of requested information will not undermine proper classification
because it certainly is in public interest to withhold information that
would damage national security), modified in other respects, No.
00-2498, slip op. at 1 (D.D.C. Sept. 25, 2002), appeal on adequacy of
search dismissed on procedural grounds, No. 02-5384, 2003 WL 21804101
(D.C. Cir. July 31, 2003).

188. Halperin v. CIA, 629 F.2d 144, 150 (D.C.
Cir. 1980) (observing that "[e]ach individual piece of intelligence information,
much like a piece of a jigsaw puzzle, may aid in piecing together other
bits of information even when the individual piece is not of obvious importance
in itself").

189. SeeSalisbury v. United States,
690 F.2d 966, 971 (D.C. Cir. 1982) (explicitly acknowledging "mosaic-like
nature of intelligence gathering") (decided under Executive Order 12,065);
Edmonds v. FBI, 272 F. Supp. 2d 35, 47-48 (D.D.C. 2003) (accepting
that "some information required classification because it was intertwined
with the sensitive matters at the heart of the case" and "would tend to
reveal matters of national security even though the sensitivity of the information
may not be readily apparent in isolation") (decided under original version
of Executive Order 12,958); ACLU v. United States Dep't of Justice,
265 F. Supp. 2d 20, 29 (D.D.C. 2003) (allowing agency to withhold statistical
intelligence-collection data, noting that "even aggregate data is revealing,"
and concluding that disclosure "could permit hostile governments to accurately
evaluate the FBI's counterintelligence capabilities") (decided under original
version of Executive Order 12,958); Loomis v. United States Dep't of
Energy, No. 96-149, 1999 WL 33541935, at *7 (N.D.N.Y. Mar. 9, 1999)
(finding that safety measures regarding nuclear facilities set forth in
manuals and lay-out plans contain highly technical information and that
"such information in the aggregate could reveal sensitive aspects of operations")
(decided under original version of Executive Order 12,958), summary affirmance
granted, 21 Fed. Appx. 80 (2d Cir. 2001); see alsoAm. Friends
Serv. Comm. v. DOD, 831 F.2d 441, 444-45 (3d Cir. 1987) (recognizing
validity of "compilation" theory, and ruling that certain "information harmless
in itself might be harmful when disclosed in context") (decided under Executive
Order 12,356); Taylor v. Dep't of the Army, 684 F.2d 99, 105 (D.C.
Cir. 1982) (upholding classification of compilation of information on army
combat units) (decided under Executive Order 12,065); Nat'l Sec. Archive
v. FBI, 759 F. Supp. 872, 877 (D.D.C. 1991) (adjudging that disclosure
of code names and designator phrases could provide hostile intelligence
analyst with "common denominator" permitting analyst to piece together seemingly
unrelated data into snapshot of specific FBI counterintelligence activity)
(decided under Executive Order 12,356); Jan-Xin Zang v. FBI, 756
F. Supp. 705, 709-10 (W.D.N.Y. 1991) (upholding classification of any particular
source-identifying word or phrase that could by itself or in aggregate lead
to disclosure of intelligence source) (decided under Executive Order 12,356);
cf.CIA v. Sims, 471 U.S. 159, 178 (1985) (recognizing that
"the very nature of the intelligence apparatus of any country is to try
to find out the concerns of others," and reasoning that "[w]hat may seem
trivial to the uninformed, may appear of great moment to one who has a broad
view of the scene and may put the questioned item of information in its
proper context") (Exemption 3).

205. Seeid.; see also Information
Security Oversight Office Ann. Rep. 6 (2003) (cautioning that "if we are
not attentive, the demands of war can distract is from doing what is necessary
today to ensure the continued efficacy of the security classification system");
FOIA Post, "Guidance on Homeland Security Information Issued" (posted
3/21/02).

209. See ISOO/OIP Homeland Security Memorandum
(referring to sections 1.5, 1.6, and 3.4(b)(2) of original version of Executive
Order 12,958 (authorizing information concerning weapons of mass destruction
to be exempted from automatic declassification)).

210. Seeid. (referring to sections
1.6(d)(2) and 3.4(b)(2) of original version of Executive Order 12,958).

217. Exec. Order No. 12,958, as amended, Â§ 1.2(b)
(providing that "no other terms shall be used to identify United States
classified information").

218. FOIA Post, "FOIA Officers Conference
Held on Homeland Security" (posted 7/3/03) (emphasizing that "primary emphasis
[should be] on the safeguarding of information, where appropriate due to
its particular sensitivity rather than on the basis of any catch-all label").